Our Surveillance Laws Are Too Permissive

The revelations about the National Security Agency’s domestic surveillance activities supply further evidence, if any were needed, that our surveillance laws are too permissive, our privacy safeguards too weak, and our oversight mechanisms utterly dysfunctional.

The activities disclosed last week are the result of systemic failure of all three branches of government — and if we are going to restore some measure of the privacy that the Constitution guarantees, we will need systemic reform.

The Guardian revealed on Wednesday that the government has directed Verizon Business Network Services to hand over an array of sensitive information about every domestic and international phone call made by its customers in the United States over a three-month period. The directive, sanctioned by the secretive court that oversees government surveillance in some national security cases, requires Verizon to tell the government who made each call, whom they called, when they made the call, how long the call lasted, and (maybe) where the parties to the call were located. Reportedly, the N.S.A. has been serving all of the major telecommunications companies with similar “metadata” directives for at least seven years. Whatever else might be said about it, the program surely constitutes one of the most ambitious surveillance efforts ever undertaken by a democratic government against its own citizens.

As if that weren’t enough, The Guardian and The Washington Post also revealed last week that the N.S.A. has secured direct access to the major Internet companies’ central servers. There seems to be some confusion about precisely what the N.S.A. is doing with that access, but The Washington Post reports that the agency is collecting information about surveillance targets believed (with 51 percent certainty) to be outside the United States and about people one and two degrees removed from these targets. So the N.S.A. might focus initially on, say, a British journalist working at Der Spiegel, collecting all of her e-mail communications as well as all uploaded videos, photos, Web surfing data, social media posts — and then collect the same information about all of the contacts in the journalist’s address book and then about all of the contacts in their address books.

On Friday, in an effort to quell a swelling tide of criticism, President Obama observed that these surveillance activities had been blessed by all three branches of government. That observation is alarming, not reassuring. Congress should have more narrowly limited the N.S.A.’s authority to monitor the communications of innocent people. The agency should never have sought the authority to cast an indiscriminate dragnet. The court should never have granted it. The surveillance activities disclosed last week are the result of systemic failure — a failure of all three branches of government — and if we are going to restore some measure of the privacy that the Constitution guarantees, we will need systemic reform.

I Don’t See a Problem Here

Eric Posner 10:00 PM

Jameel, I don’t see the need for systemic reform, nor do I see an offense to the Constitution. Indeed, I don’t even understand the nature of the objection to the National Security Agency programs. Exactly what harm did they cause? Two possibilities emerge from the current public discussion.

Objections to this surveillance are theoretical, and the mere potential for abuse isn't a good reason to shut down a program. If it were, we would have no government.

1. A general sense of creepiness that government officials know when we make phone calls, and for how long, or may even be reading our e-mail messages. Government should not look over our shoulders as we conduct our lives.

2. A fear that the government uses this information to undermine democracy — to blackmail, harass or embarrass critics, for example.

The first objection strikes me as weak. We already give the government an enormous amount of information about our lives, and seem to have gotten used to the idea that an Internal Revenue Service knows our finances, or that an employee of a government hospital knows our medical history, or that social workers (if we are on welfare) know our relationships with family members, or that public school teachers know about our children’s abilities and personalities. The information vacuumed up by the N.S.A. was already available to faceless bureaucrats in phone and Internet companies — not government employees, but strangers just the same. Many people write as though we make some great sacrifice by disclosing private information to others, but it is in fact simply the way that we obtain services we want — whether the market services of doctors, insurance companies, Internet service providers, employers, therapists and the rest, or the nonmarket services of the government like welfare and security.

Even so, I am exaggerating the nature of the intrusion. The chance that human beings in government will actually read our e-mails or check our phone records is infinitesimal (though I can understand that organizations like the A.C.L.U. that have a legitimate interest in communicating with potential government targets may be more vulnerable than the rest of us). Mostly all we are doing is making our information available to a computer algorithm, which is unlikely to laugh at our infirmities or gossip about our relationships.

The second objection is a lot more serious. We know that our government is capable of misusing information in this way, as occurred during the Nixon administration. Many people seem to believe that President Obama sent telepathic signals to I.R.S. workers instructing them to harass Tea Party organizations. But I am unaware — and correct me if I am wrong — of a single instance during the last 12 years of war-on-terror-related surveillance in which the government used information obtained for security purposes to target a political opponent, dissenter or critic. That means that, for now, this objection is strictly theoretical, and the mere potential for abuse can’t by itself be a good reason to shut down a program. If it were, we would have no government.

Privacy Is Worth Protecting

Jameel Jaffer 10:00 PM

Well, Eric, we see this very differently. You think the privacy objection is “weak,” but the fact is that many people — I’d venture to say most — feel violated when their personal information is surreptitiously collected by the government. The complaint isn’t about “a general sense of creepiness.” The complaint is that a fundamental right — a right that society has traditionally protected and that society should protect — has been infringed.

Of course we share personal information with government agents all the time. We share financial information with the I.R.S., we share information about our children with public school teachers, and so on. But the fact that we sometimes share discrete categories of information with specific categories of people for narrowly delineated purposes doesn’t seem to me to be very relevant. “Privacy” means being able to decide for ourselves whom our information is shared with, and when, and under what conditions.

The chilling effect of surveillance makes our public debates narrower and more inhibited and our democracy less vital.

Needless to say, the right of privacy shouldn’t trump everything. National security (and other government interests) may justify some narrow intrusions on privacy in some circumstances. The problem with the programs disclosed over last week is that they are so astonishingly broad.

You say you are unaware of a single instance, since 9/11, in which the government used surveillance to target a political opponent, dissenter or critic. But if the government were using surveillance this way, would officials tell us? So much secrecy surrounds the government’s surveillance activities that we simply don’t know how often, or in what ways, the government’s surveillance powers have been abused. This said, we know enough that we ought to be worried. Here is an article about the Department of Homeland Security conducting inappropriate surveillance of protesters associated with Occupy Wall Street. Here is a report of the Justice Department’s inspector general finding that the F.B.I. monitored a political group because of its anti-war views. Here is a story in which a former C.I.A. official says that the agency gathered information about a prominent war critic “in order to discredit him.”

These abuses are real, but if we focus on them exclusively we risk overlooking the deeper implications of pervasive government surveillance. When people think the government is watching them, or that it might be, they become reluctant to exercise democratic freedoms. They may be discouraged from visiting officially disfavored Web sites, joining controversial political groups, attending political rallies or criticizing government policy. This is a cost to the people who don’t exercise their rights, but it’s a cost to our society, too. The chilling effect of surveillance makes our public debates narrower and more inhibited and our democracy less vital. This is the greater threat presented by the kinds of programs that were exposed this past week.

The Secrecy Paradox

Eric Posner 10:00 PM

Jameel, let me focus on an important point you raise, which is that because surveillance is secret, we will often fail to learn when the government abuses its surveillance powers. The president claims to “welcome debate” about a program whose existence he kept secret while the government begins an investigation so that it can find and punish the leaker. How can democracy function when government keeps its programs secret?

The question raises a real paradox. If government can keep secrets, then the public cannot hold it to account for its actions. But if government cannot keep secrets, then many programs — including highly desirable ones — are impossible. Many commentators seem to think that the answer is to keep secrecy to an absolute minimum, but this response is far too easy.

Objections to the secrecy of the N.S.A. program are thus really objections to our political system itself, and, for all its flaws, there are no obviously superior alternatives.

One reason it is too easy is that it implies that secrecy can be exceptional. Government secrecy in fact is ubiquitous in a range of uncontroversial settings. To do its job and protect the public, the government must promise secrecy to a vast range of people — taxpayers, inventors, whistle-blowers, informers, hospital patients, foreign diplomats, entrepreneurs, contractors, data suppliers and many others. But that means that the basis of government action, which relies on information from these people, must be kept secret from the public. Economic policy is thought to be open, but we saw during the financial crisis that government officials needed to deceive the public about the health of the financial system to prevent self-fulfilling runs on banks. Then there are countless programs that are not secret but that are too complicated and numerous for the public to pay attention to — from E.P.A. regulation to quantitative easing. N.S.A. surveillance blends into this incessant, largely invisible background buzz of government activity; there is nothing exceptional about it.

And this puts even more pressure on the first prong of the paradox. If much (most?) of government activity remains invisible to the public, how can democratic accountability work? The answer, I think, is that political accountability in modern, large-scale democracies rarely takes place through informed public monitoring of specific government programs and policies. A few discrete issues (abortion, same-sex marriage) aside, and not counting political scandals, the public largely votes on the basis of its pocketbook and its feeling of security. The political consequences of war, terrorist attacks and economic distress — all of which are publicly observable — keep officeholders in line, but they retain vast discretion to choose among means. Because some government officials are ill-motivated and others are incompetent, government abuse is inevitable, but it is the price we pay for a government large and powerful enough to regulate 300 million people.

Think of the N.S.A. program as the security equivalent of the Affordable Care Act (which will unavoidably involve government monitoring of people’s medical care on the basis of bureaucratic procedures that no one understands): in both cases, we must prepare ourselves for the inevitable abuses that accompany a large, unwieldy, hard-to-monitor program, in order to obtain the (promised) benefits.

Objections to the secrecy of the N.S.A. program are thus really objections to our political system itself, and, for all its flaws, there are no obviously superior alternatives.

This brings me to another valuable point you made, which is that when people believe that the government exercises surveillance, they become reluctant to exercise democratic freedoms. This is a textbook objection to surveillance, I agree, but it also is another objection that I would place under “theoretical” rather than real. Is there any evidence that over the last 12 years, during the flowering of the so-called surveillance state, Americans have become less politically active? More worried about government suppression of dissent? Less willing to listen to opposing voices? All the evidence points in the opposite direction.

Views from the extreme ends of the political spectrum are far more accessible today than they were in the past. It is infinitely easier to get the Al Qaeda perspective today — one just does a Google search — than it was to learn the Soviet perspective 40 years ago, which would have required one to travel to one of the very small number of communist bookstores around the country. It is hard to think of another period so full of robust political debate since the late 1960s — another era of government surveillance.

Democracy Requires Public Accountability

Jameel Jaffer 10:00 PM

Eric, on your last point about the existence or nonexistence of a chilling effect, let me just point you to this recent report about the effect that surveillance by the New York Police Department has had on the Muslim community in and around New York City. The report concludes that “surveillance of Muslims’ quotidian activities has created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life.” I wasn’t surprised by this conclusion. In the 1970s, the Church Committee came to similar conclusions about the effect that government surveillance had had on the political engagement of African-Americans.

The argument that the government shouldn’t be required to tell the public what its policies are is an argument that we shouldn’t have a democracy.

Your claim about the pervasiveness and banality of government secrecy elides the fact that there are many kinds of secrecy. Not all of them present the same threat to democracy. I don’t think our democracy is made weaker by the government’s withholding of information about the technical means it uses to effect surveillance. I don’t think our democracy is made weaker by the government’s withholding of information about the specific targets of its surveillance — so long as the surveillance is in fact limited to specific targets and so long as there is some mechanism that permits the public to evaluate the government’s conduct after the investigation is complete.

Secrecy about government policy, though, seems to me a very different thing. The whole point of democracy is to make government accountable to the public. How can the public hold government accountable if it doesn’t know what the government’s policies are? How can the public lobby Congress to amend the Patriot Act if it has no idea how the government has interpreted it? This is why I think that you have it backward when you say that “objections to the secrecy of the N.S.A. program are thus really objections to our political system itself.” It’s objections to transparency about the N.S.A. program that have this character. The argument that the government shouldn’t be required to tell the public what its policies are is an argument that we shouldn’t have a democracy.

Revealing Details Can Diminish Effectiveness

Eric Posner 10:00 PM

The distinction you make between policy (which needs to be public) and technical means (which may appropriately be kept secret under certain conditions) is an important one, but it sometimes breaks down in practice, especially in the area of security. Take the decision to build an atomic bomb. Was construction of the bomb a policy or a technical means of winning the war? Whichever it was, it was kept secret, and rightly so, despite the real damage to democratic accountability.

The distinction between policy and technical means is an important one, but it sometimes breaks down in practice, especially in the area of security.

In the case of the N.S.A. program, I am again unsure whether it should be categorized as a policy or a technical means of protecting the U.S. from its enemies. Whichever the case, I am sympathetic to those who believe that the general existence of a program of analyzing global metadata should have been made public. But I doubt meaningful democratic debate about the program would have been possible unless details were given, so that people actually understood what they were debating about. Details like who is targeted, and why, and on the basis of what evidence; details like what abuses might take place, and how they are corrected. Details about the involvement of private sector companies. Retrospective assessments of whether particular acts of surveillance were justified. But once the N.S.A. reveals the details of the policy, its effectiveness diminishes as targets learn how to evade it. I wish there were a solution to this problem but I don’t see it.

These Programs Exist Because They Work

Joshua Foust Jun 10, 5:56 PM

While debating the morality and ultimate legality of last week’s N.S.A. revelations is important, it is also important to realize why programs like collecting telephone metadata and Prism exist to begin with. In short: people think it works.

News stories from 2002 show that the public was demanding the intelligence community “do more” to analyze information and thwart any future terrorist attacks. As a result, many of the barriers between domestic law enforcement and intelligence agencies, built after the 1975 Church Committee hearings, have been removed to make investigations easier.

Those who created them believe they are effective. If we end them, we may lose the means of preventing future attacks.

Has removing the “wall” actually helped to prevent terrorist attacks? Anonymous government sources have advanced the claim that Prism – a workflow management tool misreported as a means for collecting information – was instrumental in stopping Najibullah Zazi, who had planned on bombing the New York subway system. Those claims are disputed, at least in part, by public records of the Zazi case.

It’s unclear whether there are other success stories that matter in this debate. The high level of secrecy around these programs – all have been marked “NOFORN,” meaning no foreign national should ever read about them – makes discussing their effectiveness extraordinarily difficult.

The government, too, faces a Catch-22 in defending itself: discussing the success of these programs would, by design, require removing secrecy about them. If they only work because they’re secret, then that’s a tough choice to make.

At a political level, too, the effectiveness argument is vitally important. Director of National Intelligence James Clapper has called the leaks “literally gut-wrenching,” not because he is an evil man who loves violating privacy laws but because he seems to genuinely believe those exposed programs work. The Senate Intelligence Committee chairwoman, Diane Feinstein, too, has claimed that the N.S.A. effectively disrupts terror attacks.

Last week’s exposure of the N.S.A.’s surveillance programs does not address whether they were effective or not. But they exist because the people who created and oversee it believe they are effective. If we’re to end those programs, we should grapple with the possibility that we’re also losing the means to prevent future attacks.

Needles Are Harder to Find in Bigger Haysticks

Jameel Jaffer Jun 10, 7:24 PM

Joshua, I agree with you that effectiveness matters. I can’t help but be skeptical, though. If these dragnet programs are effective, where’s the evidence? As you note, at least one of the success stories identified by anonymous intelligence officials—the story relating to Zazi—seems not to withstand scrutiny. Let’s also note that there’s no evidence the government has relied on evidence derived from these dragnet programs in criminal prosecutions. If these dragnet programs had been effective, wouldn’t we have seen at least a handful of criminal prosecutions? Of course intelligence surveillance has many purposes; gathering evidence of criminal activity is just one of them. Still, shouldn’t the apparent absence of any criminal prosecution make us question how necessary the programs really are?

Lacking any more solid evidence of success, you fall back on the point that “the people who created and oversee” these programs “believe they are effective.” But unfortunately there are many reasons to question the trust you imply we should put in our national security agencies when they tell us, in essence, “we need more power to make you safe.”

The intelligence community’s biggest challenge has never been collecting information; the biggest challenge has always been making sense of it.

It’s also worth remembering that the intelligence community’s biggest challenge has never been collecting information; the biggest challenge has always been making sense of it. Launching new programs to collect more information can be a good way to pad the pockets of defense contractors and data-miners, but, as many have noted, it isn’t usually a good way to identify terrorist threats. The analogy is now a bit threadbare, but it’s still useful: You don’t find needles by building bigger haystacks. After the NSA launched the warrantless wiretapping program, FBI agents repeatedly complained that they were drowning in useless information. (Eric Lichtblau wrote: “The torrent of tips led [the FBI] to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.”). One of the 9/11 Commission’s most important observations was that the intelligence community had information in the summer of 2001 that could have allowed it to prevent the 9/11 attacks. The problem wasn’t that it lacked information, but that it didn’t understand the information it had.

Finally, “effectiveness” isn’t as simple as you make it out to be. A program can be effective in some very narrow sense but also seriously compromise our democracy over the long term. A program can be effective in some very narrow sense but also be fundamentally inconsistent with our values. Again, I agree that the effectiveness question is worth asking. But answering the effectiveness question isn’t as simple as asking whether these surveillance programs yielded useful information.

Introduction

Associated PressA copy of the U.S. Foreign Intelligence Surveillance Court order requiring Verizon to give the National Security Agency information on telephone calls.

Last week’s disclosures about government surveillance of communications show how 12 years after 9/11, efforts to fight terrorism continue to raise questions about morality, legality and effectiveness. Is government surveillance a threat to our democracy?

| Updated

After reading a lively Twitter exchange between Jaffer and the former intelligence analyst Joshua Foust, we’ve asked Foust to extend the debate here.